1989 PLP 1044 (CLC)

This is a suit for recovery of Rs.1,15,500.

2. Case of the plaintiff is that on or about March, 1978 the defendant firm entered into an agreement with the plaintiff for executing a job of development of plaintiff s land at its project No.2 of Chaman‑e‑Zar and for that purpose the plaintiffs society had advanced Rs.3,99,325 in various instalments to the defendant firm at all material times. The defendant firm failed to carry out the job and on plaintiff s demand it returned Rs.2,36,380 out of the principal amount advanc,2d to them. They promised to refund the balance amount of Rs.1,62,795 within one year with no interest per annum‑ In addition to it the defendant firm gave an undertaking for refund of the balance amount within the stipulated time by confirmation letter dated 24‑8‑1979. The defendant issued cheque of Rs‑1,15,000 in favour of the plaintiff on 13‑9‑1979 towards part payment of the above balance amount. The said cheque was presented to bank on 17‑9‑1979 but the same was dishonoured. The plaintiff sent reminder to the defendant but without any response. Hence the suit.

3. The defendants filed written statement wherein they denied to have entered into any contract with the plaintiff. They also denied to have received any payment. They also denied that they had executed any document or any agreement was written thereof. They have denied to have made any part payment and have stated that this was all forgery and cooked up story. It is alleged that the plaintiff society had sold their land to Pakistan Peoples Construction Company by agreement of sale ‑and during that period Abdul Rashid, one of the partners of defendant No.l removed a blank cheque from the cheque book of the defendant No.1 and forged the signature of the defendant No.2, thereon and presented t to the bank for encashment. The bank became suspicious and dishonoured the cheque. Besides certain legal pleas have also been taken which are evident from the issues. The issues are as under:‑ (1) Whether the suit has been filed by an unauthorised person, as such not maintainable ? (2) Whether the suit is bad for non‑joinder of necessary parties, if so its effect ? (3) Whether the suit is not maintainable in view of any pending arbitration proceedings under Co‑operative Societies Act, 1925 between the parties ? (4) Whether the agreement dated 0.4‑8‑1979 entered into between the defendant No.l and plaintiff society and letter dated 24‑8‑1979 of defendants referred to in the plaint as Annexures A and B are forged and fabricated ? (5) Whether the letter dated 6‑9‑1979 of the plaintiffs (Annexure C to the plaint) was served upon the defendants, if so its effect ? (6) Whether the cheque No.850110 dated 13‑9‑1979 of the defendant No.2 issued in favour of the plaintiffs is forged ? (7) Whether the alleged cheque is without consideration ? (8) Whether the defendants jointly or severally are liable to pay the amount claimed in the suit ? (9) What should the decree be?

4. The case was fixed for recording of evidence on 30‑5‑1988. Only the plaintiff s counsel Mr. Syed Ahmedullah Farooqui was present. There was no appearance for defendant. The defendants had two counsel, one Mr. Syed Hamid Ali who has expired but the other Advocate Mr. Muhammad Kazim is alive. The case was then adjourned to 3‑8‑1988. Even on this date only plaintiff s counsel was present. There was no appearance for the defendants. Hence the plaintiff s counsel was called upon to file affidavit‑in‑evidence along with the documents. The plaintiff s counsel has filed affidavit of Syed Badruddinl Honarary Secretary of the plaintiff s society along with resolution of the society, the agreement of refund of the amount, a notice sent by the society to the defendant, the memo. of bank, letter of the Advocate, 3 letters sent by the society to the defendant, the registration receipt and acknowledgment due of the registered notice A sent by the Advocate of the plaintiff.

5. The above evidence of the plaintiff has gone unchallenged and un-rebutted. 1 am satisfied about the claim of the plaintiff. The legal issues raised by the defendants, do not appear to be substantial. It is not shown as to how these legal objections have been raised. Hence I decide all the issues of fact as well lis law in favour of the plaintiff., therefore, decree the plaintiff s suit for a sum of Rs.1,15,

500. I also allow interest at the rate of 6$ per annum from the date of the cheque i.e. 13-9‑1979 till the date of the recovery of the decretal amount. The costs of the suit shall be borne by defendants. A.A. /R‑69/ K Suit decreed.